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Davis v Harbour Inn Fisheries Ltd
18 Sep 2006, P Cheyne, CA 141/06, (4 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant
claimed dismissed for alleged theft of stock - Dispute over exchange that led to
termination - Best evidence of what occurred was statement given to police soon
after - Applicant dismissed - Fair and reasonable employer would have given
applicant better opportunity to explain or mitigate - Director suspected
applicant of taking fish for sometime - Suspicion never raised with applicant -
Director had organised for representative to be present when applicant dismissed
- Director and partners made up mind about applicant's culpability before
exchange that led to termination - Dismissal unjustified - Remedies - Authority
accepted fish missing - In circumstances only applicant could be responsible -
Contributory conduct 100 percent - Length of service one year two months - Fish
filleter
Result: Application granted ; Costs reserved
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Hunt & Tamaiparea v Christchurch Yarns New Zealand Ltd
10 Aug 2006, H Doyle, CA 70A/06, (8 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicants dismissed
when caught by hidden camera clocking each other in - Whether disciplinary
process fair - Applicant's argument situation may have been different if camera
disclosed was persuasive - However, not procedurally unfair here - With one
exception disciplinary investigation process fair and reasonable - Unfair second
applicant not shown recording until after dismissal - Particularly
disadvantageous as general manager felt trust further eroded by reluctance to
accept blame or actual events - May have received different response if video
shown - Whether fair and reasonable employer would have considered actions
serious misconduct - Applicants claimed relatively minor infringement of rules
done without intention of defrauding or undermining respondent's authority -
House rules stated infringement to falsify company records including clocking
another's time card - No conclusion applicants had not commenced work at correct
time - No benefit to them except convenience - Falsification required intent to
make record inaccurate so as to deceive - Should not have clocked each other in
but fair and reasonable employer would not conclude behaviour serious misconduct
in terms of falsification of company records - Evidence applicants did not think
about actions - Authority did not find fair and reasonable employer would
conclude deliberate and wilful refusal to follow instructions or conclude
actions were serious misconduct that significantly undermined trust and
confidence - No conduct fair and reasonable employer would regard as serious
misconduct - Trust and confidence not undermined to significant degree to
justify summary dismissal - Open to fair and reasonable employer to conclude
misconduct - Collective agreement provided for oral warning for first offence -
Fair and reasonable employer would not have summarily dismissed applicants -
Dismissals unjustified - Remedies - Interim orders for reinstatement made but
first applicant had obtained alternative employment - Authority did not agree
with submission that as no longer seeking reinstatement compensation should be
increased - Each applicant awarded $3,000 compensation - Actions errors of
judgement and probably foolish but not serious misconduct and no financial
consequence for respondent - Contributory conduct 20 percent - No good and
reasonable reason for complete loss of trust and confidence in second applicant
- Contributory conduct did not act as bar to reinstatement - Interim
reinstatement order made permanent for second applicant - Length of service six
years (first applicant) and eleven years (second applicant) - Textile
workers
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined by parties less 20% contributory conduct) ; Compensation for humiliation etc ($3,000 reduced to $2,400)(each) ; Reinstatement (Second applicant) ; Orders accordingly ; Costs reserved
James v John Webster Chief Executive Officer Unitec Institute of Technology
4 Aug 2006, RA Monaghan, AA 256/06, (19 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal -
Applicant introduced restructuring proposal at respondent - Tutors formed group
to oppose it - "Get well" card circulated in academic community -
Claimed respondent "sick" institution for employing applicant and
listed allegations about him - Card prompted investigation - Applicant suspended
- Respondent dismissed on basis applicant: (1) Failed to discharge responsible
stewardship of resources when waived fees of two students failing to discharge;
(2) pursued personal relationship with student ("C") after waiving
her fees; (3) and (4) bullied or threatened colleagues in two incidents - Not
unfair investigation uncovered information forming ground of dismissal -
Reasonably concluded C more credible witness - Applicant previously received
informal warnings and counselling about "inappropriate" behaviour
- Not case where prior disciplinary warnings directly invoked to support
dismissal - Respondent not estopped from considering employment history - No
failure to properly investigate actions of group - No evidence group set on
undermining applicant or securing his dismissal - Claimed respondent failed to
provide documents in breach of Privacy Act 1993 - No jurisdiction to determine
such breaches - No evidence relevant information not put to applicant - Grounds
(1) and (2) serious misconduct justifying dismissal - (1) Reasonable conclusion
waiver of fees deeply impaired or destructive of trust and confidence and
failure to follow procedure would have detrimental effect on respondent -
Conduct may have brought respondent into disrepute - (2) Pursuing personal
relationship not serious misconduct in itself - However, it came at end of
course of conduct following waiver of fees - Reasonable conclusion conduct
capable of bringing respondent into disrepute and of amounting to serious
misconduct under disciplinary policy - Grounds (3) and (4) less than
satisfactory conduct but reinforced reasonableness of respondent's overall loss
of trust and confidence - In all circumstances dismissal open to respondent -
Dismissal justified - UNJUSTIFIED DISADVANTAGE - Suspension enabled
investigation to proceed without ongoing conflict - Applicant warned of
possibility of suspension and reasons for it before decision made - Suspension
justified - No disadvantage on any grounds submitted - Length of service nine
years - School department head
Result: Application dismissed ; Costs reserved
Kendrick v Orica New Zealand Ltd
10 Aug 2006, j Scott, AA 262/06, (12 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Driver reported
safety fitting on tanker removed - Video surveillance from previous night showed
unidentifiable person wearing red on top of tanker - Gate activity records
showed applicant and another employee on site around time of incident -
Applicant identified elsewhere on video wearing red - Manager met both men and
decided applicant had case to answer - Disciplinary investigation commenced and
applicant suspended - Respondent concluded applicant guilty of serious
misconduct and dismissed him - Evidence at investigation meeting differed in
number of respects from evidence gathered during disciplinary investigation -
Critical to Authority's assessment that regarded what known and done by
respondent at time decision to dismiss made - Respondent's evidence preferred -
No unfairness resulted out of preliminary discussion - Fair and thorough
investigation - Extreme hazard posed by tampering meant seriousness of
misconduct outweighed any positive features of applicant's employment history -
Failure to retain some footage not fatal to finding dismissal justified, but
retention would have enhanced process - Not fatal no motive established -
Respondent not required to positively identify person on tanker or show conduct
complained of occurred, only that following fair and through inquiry it arrived
at honest belief misconduct occurred - Conclusion open to respondent and
dismissal action that would have been taken by fair and reasonable employer -
Dismissal justified - RAISING PERSONAL GRIEVANCE - Grievance not raised in
relation to suspension within 90 days and had not sought leave to raise it out
of time - No findings made - However, Authority noted had it considered
applicant disadvantaged unlikely remedies would have been awarded given
circumstances and contribution - Length of service one year ten months -
Driver
Result: Application dismissed ; Costs reserved
Ratahi v Te Whanau O Waipareira Trust Incorporated
23 Feb 2007, V Campbell, AA 47/07, (21 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant CEO
of respondent - Motion of no-confidence in applicant carried -
Subsequently dismissed for failing to inform respondent of IRD statutory demand
and failing to keep it advised as to extent of its indebtedness to IRD -
Applicant attended board meeting believing was to discuss retirement of debt,
had no knowledge no-confidence vote was to be put and if carried, he would be
dismissed - Applicant had obligation to report fully on major issues
facing respondent, including extent of debt owed to IRD and existence of
statutory demand - Applicant took steps to "cover up" extent
of debt by not itemising financial reports, and by asking IRD not to detail
quantum of debt in communications to respondent - Alleged applicant
involved in business enterprises in conflict of interest with CEO role - On
preponderance of evidence, Board aware of applicant's involvement in business
enterprises and condoned it - Could have directed him to cease or refrain from
activities - Effect of statutory demand very serious, as was failure to
accurately report on debt - Respondent correct in concluding omissions and
actions amounted to serious misconduct and destructive of trust and confidence
- Having passed vote of no confidence, contingent on Board to investigate
and follow contractual obligations - Had Board followed fair and reasonable
process, likely applicant would have been dismissed - Fair and reasonable
employer would have put its information to applicant, and provided opportunity
to seek representation and explain - Unjustified dismissal - Remedies -
Due to significant contribution entitled to contribution to costs, but no other
remedy - Length of service four years one month - Chief executive
officer
Result: Application granted ; Costs reserved
Stevens v Williams t/a Williams & Co
28 Aug 2006, J Crichton, CA 139/06, (6 pages)
UNJUSTIFIED DISMISSAL - Serious Misconduct - Summary Dismissal -
Applicant dismissed for lying - Respondent relied on applicant's positive
assurance cheques deposited - Cheques not deposited - Authority preferred
respondent's recollection of events and accepted misled by applicant - Whether
process fair and reasonable - Nothing improper about meeting where applicant
provided assurance deposits made - Procedure adopted on day of dismissal so
flawed resulting dismissal unsafe - Applicant summoned to meeting without notice
and without opportunity to obtain representation - Breach of employment
agreement that entitled applicant to support person - Clear power imbalance when
young employee in first serious employment questioned by three senior
representatives of employer - Authority did not accept different procedure would
not have enabled applicant to deal more appropriately with allegation -
Procedurally unfair - Dismissal predated enactment of s103A Employment Relations
Act 2000 - Respondent's decision harsh but substantially justified - Dismissal
unjustified - Remedies - Contributory conduct 60 percent - Length of service not
specified - Office junior/receptionist
Result: Application granted ; Reimbursement of lost wages ($6,264 reduced to $2,505.60) ; Compensation ($3,000 reduced to $1,200) ; Costs reserved
Vukomanovic v Sportzone Sports Ltd
7 Aug 2006, G Wood, WA 112/06, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal -
Applicant employed to fundraise for community soccer projects - Second
respondent ("M") director of first respondent ("S")
- M concerned following comments from soccer community about applicant's
behaviour - M alleged applicant took business cards believing were season
tickets and intended to sell them - Dismissed applicant without raising concerns
- Insufficient evidence supporting serious allegation applicant sought to profit
from cards - S accepted procedures in dismissing not those of fair and
reasonable employer - However, claimed had good cause to dismiss - No procedural
steps taken - No substantive ground existed that would have led fair and
reasonable employer to dismiss - Applicant had difficulties with English -
Issues of communication should have been worked through - Remedies - S in bad
financial position - Could not afford to employ applicant - In all circumstances
reinstatement impracticable - ARREARS OF WAGES - Failed to pay final pay -
Parties agreed to pay rise but no increase ever paid - Agreement subject to
implied condition fundraising successful - Fundraising unsuccessful, therefore
entitled to wages at original rate - PENALTY - S breached duty by withholding
final pay - M not personally liable as acted at all times as director - No good
purpose served in paying penalty to Crown - Length of service 11 months -
Project Leader
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages (three months) ; Compensation for humiliation etc ($2,500) ; Arrears of wages (Quantum to be determined) ; Application dismissed (Penalty) ; Disbursements ($70)(Filing fee)
Wasilewska v Otago District Health Board
10 Aug 2006, P Montgomery, CA 116/06, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent received
numerous complaints about applicant from other staff - Issue raised between
parties several times - Dismissed following complaint from nurse over way
treated by applicant - Interim reinstatement to another position - Clear
applicant breached respondent's code of conduct - However, actions were
misconduct, not serious misconduct - Warranted formal warning but summary
dismissal not appropriate - Inquiry into incident full and fair - However,
respondent erred in relying on earlier incidents which had previously stated
were not substantiated and which it advised applicant would not be taken further
- Respondent's actions and decisions fit into "last straw"
category - Applicant on notice disciplinary action would follow if failed to
correct behaviour - However, action taken over-severe - Dismissal unjustified -
Remedies - Reinstatement ordered - Reinstatement to former position not required
as Authority did not accept in best interests of respondent's patients and staff
- At election of respondent to determine, and under what agreed conditions,
applicant takes up position in original unit - Mediation assistance should be
sought - Contributory conduct 40 percent - Length of service 11 years 8 months -
Nurse
Result: Application granted ; Reimbursement of lost wages ($8,251.94 reduced to $4,951.16) ; Compensation for humiliation etc ($10,000 reduced to $6,000) ; Costs reserved
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